What Now?

While we drift in the lull of the new term of the United States
Supreme Court, waiting to learn if at least one branch of the
federal government has come to its senses about patent law,
let’s cast a wary eye across the Atlantic to see what
mischief the European Commission has wrought. The Commission, or at
least some of its members, have been busy little beavers, albeit
more pests than nifty engineers.

First is the European Patent Litigation
Agreement, or EPLA, (
"http://patlaw-reform.european-patent-office.org/epla/" class=
"story_link">http://patlaw-reform.european-patent-office.org/epla/)
being advanced by DG Internal Markets (DGIM) and its pro-patent
commissioner, Charlie McCreevy of Ireland. The essence of EPLA is
to create a single court for patent litigation along the lines of
the U.S. Court of Appeals for the Federal Circuit (CAFC). (Your
remember the CAFC. It’s the court that gave us software
patents, business method patents, reduced obviousness, and
mandatory injunctions, just to name a few of the more prominent
exercises of the body’s judicial activism in the field of
patent law.) Now the European Commission wants to make this same
mistake. Critics of the EPLA, including yours truly, view it as
merely a back door to establishing software patents across the
European landscape, since it would become the enforcement vehicle
for the European Patent Office (EPO). Yes, the EPO is the same body
that continues to ignore its own charter and grants software
patents.

Next is IPRED, the proposed directive on
criminal measures aimed at ensuring the enforcement of intellectual
property rights (
"http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf"
class=
"story_link">http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf)
This directive is intended to extend criminal enforcement measures
around so-called intellectual property rights, particularly for
“intentional infringement” on a “commercial
scale.” However, this proposed directive is troubling because
it would apply such measures to intentional patent infringement as
well as the intentional infringement of copyrights and trademarks.
The problem is that patent infringement is virtually unavoidable in
the software field, and to raise the stakes to include criminal
penalties is hardly in the software industry’s favor.Even Microsoft takes a dim view of this
proposal. Fortunately, the European Parliament recognizes
the inherent piftalls, so the inclusion of intentional patent
infringement is not likely to survive the legislative process.

Finally, there is a study sitting in the wings that is likely to
draw yet another proposal from DGIM, this one on mandatory patent
litigation insurance. At present, the study (available at
"http://ec.europa.eu/internal_market/indprop/docs/patent/studies/pli_report_en.pdf"
class=
"story_link">http://ec.europa.eu/internal_market/indprop/docs/patent/studies/pli_report_en.pdf),
is avaiilable for public comment (
"http://ec.europa.eu/internal_market/indprop/patent/index_en.htm"
class=
"story_link">http://ec.europa.eu/internal_market/indprop/patent/index_en.htm#
certificate).

Perhaps my reaction to this study is a bit harsh, but it strikes
me as the most harebrained scheme out of DGIM yet. Think of it, a
mandatory scheme of patent litigation insurance imposed on both
patent holders and potential patent infringers through the
application of mandatory premiums. (You might as well call it atax). Although meant to reduce the incidence
and cost of patent litigation, one doesn’t need a vivid
imagination to see the potential for an opposite result. A small
patent holder would be emboldened to enforce its patents at every
opportunity, while each infringement defendant would no longer be
motivated toward an early settlement where defense to the
infringement claim is weak. No, let’s all just fight it
out.

Now, in fairness to the study, the authors understand the
problem. In some areas, such as software, the sheer number of
patents to be culled to avoid an infringement claim and the cost of
the culling effort are such that it is all but impossible to avoid
infringement. The insurance industry, never one to miss an
opportunity to make money in underwriting risk, has shied aware
from patent infringement insurance, particularly for the software
industry, because they cannot sufficiently measure the risk, and
that risk seems virtually certain.

But the study heads in the wrong direction in finding a
solution. Rather than attack the problem of ubiquitous and
questionable software patents by barring them altogether in the EU,
the authors have come up with one more chewing gum and baling wire
solution to ensure that such patents can continue to survive.

That brings me to at least one solution for the open source
community: the Foundation for a Free Information Infrastructure, or
FFII (
"story_link">http://www.ffii.org/Home). This EU lobbying
organization, which represents primarily small- and medium-sized
enterprises, was almost solely responsible for the defeat of the
directive on computer-implemented inventions by the European
Parliament in 2005. Under the then leadership of Hartmut Pilch and
now Pieter Hintjens, FFII has consistently applied pressure on the
European Parliament to consider the impact of legislative
initiatives of software and intellectual property on all
businesses, including the small- and medium-sized businesses that
are most responsible for new innovations and new jobs.

The well-reasoned and forcefully communicated positions of FFII
continue to garner merited attention. While FFII carries out many
of its activities through the volunteer efforts of its members, it
can always use financial support. If you want to protect open
source and help Europe avoid the numerous patent mistakes of the
U.S., consider actively supporting FFII with both your time and
money.